Ocello v. Koster, 354 S.W.3d 187

Background

Missouri statute sections 573.525 to 573.540 regulate sexually oriented businesses by prohibiting nude dancing in public, restricting dancer-patron contact to six feet, banning alcohol, limiting hours, and requiring visible viewing booths.
Businesses challenged the Act as unconstitutional content-based speech restrictions under the First Amendment and for alleged procedural defects in fiscal-note handling.
The circuit court granted judgment on the pleadings for the State, upholding constitutionality and rejecting the fiscal-note challenge.
The court applied intermediate scrutiny under Renton and Alameda Books, concluding the Act targets negative secondary effects, not speech content, and are reasonable time/place/manner restrictions.
The court rejected the contention that failure to hold a fiscal-note hearing voids the Act, finding Article III, section 35 limits are advisory and do not mandate such hearings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are the Act's procedural defects voidable?	Ocello contends fiscal-note hearing was required by art. III, §35.	State argues §35 is advisory; no mandatory hearing required.	Procedural defect not voiding the Act.
Is the Act content-based or content-neutral?	Businesses claim content-based suppression of sexually oriented speech.	Act targets negative secondary effects, not speech content.	Content-neutral; intermediate scrutiny applies.
Do the Act's time/place/manner restrictions pass intermediate scrutiny?	Restrictions are overbroad and suppress speech via patronage limits.	Restrictions are tailored to secondary effects and leave open channels of communication.	Passed intermediate scrutiny; valid restraints.
Is the nudity ban subject to the same standard as other restrictions?	Nudity ban is a total speech ban needing stricter scrutiny.	Nudity restrictions analyzed under Renton/Alameda Books framework.	Nudity ban upheld under Renton/Alameda standard.
Do alcohol and hours restrictions survive scrutiny under proportionality?	Regulations unnecessarily chill speech and business operation.	Empirically supported by secondary-effects evidence; proportionality satisfied.	Restrictions upheld; proportionality satisfied.

Key Cases Cited

Alameda Books, Inc. v. City of Los Angeles, 535 U.S. 425 (U.S. 2002) (reasonableness of evidence for secondary effects; initial burden on government)
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (U.S. 1986) (framework for time, place and manner restrictions)
Pap’s A.M. v. City of Erie, 529 U.S. 277 (U.S. 2000) (nudity ban treated under Renton/Alameda approach; nudity as expressive conduct)
Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003) (upholding alcohol ban and nighttime restrictions in similar contexts)
Richland Bookmart, Inc. v. Knox County, 555 F.3d 512 (6th Cir. 2009) (evidence-based challenge to speech-restrictive statutes; anecdotal evidence considerations)
Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, 630 F.3d 1346 (11th Cir. 2011) (application of Alameda/ Renton standards to nudity/secondary-effects regimes)
DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997) (reliance on evidence of secondary effects in regulation cases)
Bamon Corp. v. Dayton, 923 F.2d 470 (6th Cir. 1991) (health/sanitation concerns supporting restricted frameworks)
Young v. American Mini Theatres, Inc., 427 U.S. 50 (U.S. 1976) (early framework for sexually oriented business regulation and speech)
City of Erie v. Pap’s A.M., 529 U.S. 277 (U.S. 2000) (nudity ban evidence standards; reiterates Renton/Alameda alignment)
California v. LaRue, 409 U.S. 109 (U.S. 1972) (government interest in restricting explicit conduct linked to secondary effects)
Sender v. Oregon State Bd. of Dental Examiners, 294 U.S. 608 (U.S. 1935) (legislative choices in regulating evil; non-uniform regulation permissible)
Hammerschmidt v. Boone Cnty., 877 S.W.2d 98 (Mo. banc 1994) (distinguishes mandatory vs. directory procedural rules)